M/s. Akhand Jyoti Kalyan Sewa Samiti, Balrampur V. Asstt. Commissioner of Income Tax, GONDA

ITA 308/LKW/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8179 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 29-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: M P MISHRA
• Keywords: Opportunity of being heard; Assessment record; Condonation of delay
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI B. R. JAIN , ACCOUNTANT MEMBER ITA NO S . 308 & 309/LKW/2012 ASSESSMENT YEAR S : 2006 - 07 & 2007 - 08 M/S AKHAND JYOTI JAN KALYAN SEWA S AMITI NEAR MAJOR CHAURAHA, KALI THAN ROAD PURABI TOLA, BALRAMPUR V. ACIT GONDA PAN: AAAAA8592Q (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. M. P. MISHRA, ADVOCATE RESPONDENT BY: SHRI. ALOK MITRA, D.R. DATE OF HEARING: 08.08.2012 DATE OF PRONOUNC EMENT: 08.08.2012 O R D E R PER S UNIL KUMAR YADAV : THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST A COMMON ORDER OF THE LD. CIT(A) - II, LUCKNOW DATED 8.11.2011 ON VARIOUS COMMON GROUNDS. EXCEPT THE DIFFERENCE IN QUANTUM, THE GROUNDS ARE ALMOST S AME IN BOTH THE YEARS. WE, THEREFORE, EXTRACT THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2006 - 07 IN ITA NO. 308/LKW/2012 AS UNDER: - 1 . THAT THE LEARNED COMMISSIONER OF INCOME - TAX HAS ERRED IN LAW AND ON FACTS IN FAILING TO ADJUDICATE ON LEGAL GROUND OF APPEAL NO. 2 WHICH IS QUOTED HERE UNDER : - ' THAT THE ID. ASSESSING OFFICER HAS ERRED IN FACT AD IN LAW IN INITIATING PROCEEDINGS U/S 147 OF THE I.T. ACT, 1961.' : - 2 - : 2 . THAT THE LEARNED COMMISSIONER OF INCOME - TAX HAS ERRED IN LAW AND ON FACTS IN ARBITRARILY CONFIRMING THE ASSESSMENT ORDER WHICH WAS PASSED BY THE A.O. WITHOUT ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 3 . THAT THE LEARNED COMMISSIONER OF INCOME - TAX HAS ERRED IN LAW AND ON FACTS IN FAILING TO CONSIDER THE GROUNDS OF APPEAL ON MERITS ON TH E BASIS OF MATERIAL PLACED ON ASSESSMENT RECORD. 4 . THAT THE LEARNED COMMISSIONER OF INCOME - TAX HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE DISALLOWANCE OF RS 3,67,559/ - , BEING 50% OF THE EXPENDITURE CLAIMED WHEREAS THE DISALLOWANCE OF ONLY 10% HAS BEEN SU STAINED IN APPEALS OF COMPARABLE CASES. 2 . THESE APPEALS ARE FILED LATE BY 38 DAYS. THE ASSESSEE HAS MOVED APPLICATIONS FOR CONDONATION OF DELAY IN BOTH THE APPEALS ON THE GROUND THAT THE ORDER OF THE LD. CIT(A) WAS NOT SERVED UPON THE ASSESSEE AND IT WAS R ECEIVED BY ASSESSEE - COMPANYS PART TIME ACCOUNTANT , WHO IN FACT LEFT THE ASSESSEE - COMPANY. THEREFORE, THESE APPEALS COULD NOT BE FILED IN TIME. IN SUPPORT OF THESE CONTENTIONS, AN AFFIDAVIT OF THE MANAGER OF THE ASSESSEE - COMPANY IS PLACED ON RECORD. 3 . FI NDING FORCE IN THE CONTENTIONS OF THE ASSESSEE, WE CONDONE THE DELAY AND ADMIT THESE APPEALS FOR ADJUDICATION. 4 . DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS NOT ADJUDICATED UPON THE APPEALS ON MERIT AN D HAS SUMMARILY DISPOSED IT OF. THEREFORE EITHER THE MATTER MAY BE SENT BACK TO THE LD. CIT(A) FOR READJUDICATION ON MERIT OR THE TRIBUNAL ITSELF MAY ADJUDICATE THE ISSUE RAISED IN THESE APPEALS BY PASSING A REASONED ORDER. 5 . THE LD. D.R., ON THE OTHER HAND , HAS SUBMITTED THAT DESPITE VARIOUS OPPORTUNITIES, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A) . THEREFORE, THE LD. CIT(A) HAS NO OPTION BUT TO ADJUDICATE THE : - 3 - : APPEAL S EX - PARTE AGAINST THE ASSESSEE. THE LD. CIT(A) HAS ALSO EXAMINED ALL F ACTS AND GIVEN THE FINDINGS ON MERIT. 6 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF RECORD, WE FIND THAT UNDISPUTEDLY NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A). THE REASONS FOR NON - APPEA RANCE WAS STATED TO BE OF NON - RECEIPT OF NOTICE OF THE LD. CIT(A) ON ACCOUNT OF CHANGE OF ADDRESS OF THE ASSESSEE - COMPANY. SINCE THE APPEALS WERE DECIDED BY THE LD. CIT(A) IN THE ABSENCE OF THE ASSESSEE WITHOUT SERVICE OF NOTICE IN ACCORDANCE WITH THE LAW , WE ARE OF THE VIEW THAT THE MATTER MAY BE SENT BACK TO THE LD. CIT(A) FOR FRESH ADJUDICATION. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO READJUDICATE THE APPEALS ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF CONCLUSION OF HEARING ON 8.8.2012. S D / - S D / - [B. R. JAIN ] [ S UNIL KUMAR Y A DAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 9.8.2012 JJ: 0808 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR